FILED: BRONX COUNTY CLERK 06/06/ :24 PM INDEX NO /2016E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/06/2016

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1 FILED: BRONX COUNTY CLERK 06/06/ :24 PM INDEX NO /2016E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/06/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX LISA SEABROOKS, as Administrator of the Estate Of AARON SEABROOKS, deceased, -against- Plaintiff, JEWISH HOME LIFECARE, HARRY & JEANETTE WEINBERG CAMPUS, BRONX, THE JEWISH HOME AND HOSPITAL/BRONX DIVISION, HARRY AND JEANETTE WEINBERG CAMPUS, JEWISH HOME LIFECARE, MONTEFIORE MEDICAL CENTER, MONTEFIORE MEDICINE ACADEMIC HEALTH SYSTEM, INC. and ALBERT EINSTEIN COLLEGE OF MEDICINE, INC., Index #21845/2016E ATTORNEY AFFIRMATION IN SUPPORT OF MONTEFIORE MEDICINE ACADEMIC HEALTH SYSTEM, INC. & ALBERT EINSTEIN COLLEGE OF MEDICINE, INC. S MOTION TO DISMISS Defendants. Dominique Murray, Esq., duly admitted to practice before the Courts of the State of New York, affirms pursuant to Rule 2106 of the CPLR and subject to the penalties of perjury, that the following facts are true: 1. I am associated with the law firm of Widowski Law Group LLP, attorneys for moving defendants Montefiore Medicine Academic Health System, Inc. and Albert Einstein College of Medicine, Inc., and as such, am familiar with the facts and circumstances of this action by virtue of the file maintained by this office. 2. I submit this affirmation in support of the moving defendants motion for an order dismissing plaintiff s complaint, with prejudice, as against them, on the grounds that pursuant to CPLR 3211(a)(7), the complaint fails to state a cause of action because none of plaintiff s claims can be maintained against Montefiore Medicine Academic Health System, Inc. and Albert Einstein College of Medicine, Inc.; or in the alternative, pursuant to CPLR 1003, dropping the moving 1 of 5

2 defendants from this action as party defendants, upon the ground of misjoinder. 3. This action sounds in medical malpractice and wrongful death. RELEVANT PROCEDURAL BACKGROUND 4. This action was commenced by the filing of a Summons and Verified Complaint, bearing Index Number 21845/2016E, on or about March 17, (A copy of plaintiff s summons and complaint is annexed hereto as Exhibit A ). 5. On or about April 18, 2016, plaintiff electronically filed a Verified Amended Complaint, and added Montefiore Medicine Academic Health System, Inc. and Albert Einstein College of Medicine, Inc. as defendants to the amended complaint. (A copy of plaintiff s supplemental summons and amended complaint is annexed hereto as Exhibit B ). 6. On April 28, 2016, co-defendant Jewish Home Lifecare, Harry and Jeanette Weinberg Campus, Bronx served its verified answer to plaintiff s amended complaint. 7. On May 10, 2016, co-defendant Montefiore Medical Center served a Verified Answer to the Amended Complaint. (A copy of this answer is annexed hereto as Exhibit C ). 8. On May 11, 2016, the moving defendants served their respective Verified Answers to the Amended Complaint, raising, inter alia, failure to state a cause of action, lack of standing, improper party, and misjoinder as affirmative defenses. (Copies of these respective answers are annexed hereto as Exhibit D ). RELEVANT FACTUAL BACKGROUND 9. In essence, plaintiff is claiming that the moving defendants and co-defendant Montefiore Medical Center departed from good and accepted medical malpractice in rendering certain treatment on or about March 25, 2014 through on or about April 17, 2014, at the health care facility located at 11 East 210 th Street, Bronx, New York 11467, that caused severe and 2 2 of 5

3 permanent serious personal injuries... and mental anguish; all of which resulted in her [sic] premature death on April 22, (Exh. B, ). Co-Defendant Montefiore Medical Center answered the amended complaint on May 10, (Ex. C ). 10. According to the Affirmation of Tina H. Weinstein, Esq., who is Vice President of Risk and Loss Prevention at Montefiore Medicine Academic Health System, at all relevant times set forth in plaintiff s amended complaint, the respective moving defendants: (1) were (and remain) separate and distinct legal entities from co-defendant Montefiore Medical Center; (2) did not (and do not) own, manage, operate, maintain, supervise, inspect, or control the staff at, the health care facility located at 111 East 210 th Street, Bronx, New York 11467; (3) did not (and do not) have any legal affiliation with co-defendant Montefiore Medical Center; and (4) were not (and are not) hospitals or health care facilities, and did not (and do not) provide health care services to patients. Lastly, neither moving defendant provided any health care services to plaintiff s decedent Aaron Seabrooks during the relevant time period, or at any other time. (Id. at 7). ARGUMENT I. PLAINTIFF S AMENDED COMPLAINT HAS FAILED TO STATE A CAUSE OF ACTION AGAINST DEFENDANTS MONTEFIORE MEDICINE ACADEMIC HEALTH SYSTEM, INC. AND ALBERT EINSTEIN COLLEGE OF MEDICINE, INC. BECAUSE THEY ARE IMPROPER PARTIES 11. On a motion to dismiss pursuant to CPLR 3211(a)(7), the Court accepts the facts as alleged in the complaint as true, accords the complaint every possible favorable inference, and determines whether the facts as alleged fit within any cognizable legal theory. Leon v. Martinez, 84 N.Y.2d 83 at 88 (1994). Where a defendant is clearly an improper party... its motion to dismiss should [be] granted. Villaseca v. City of New York, 48 A.D.3d 218, (1st Dept. 2008). 12. There is no basis for imposing liability against Montefiore Medicine Academic 3 3 of 5

4 Health System, Inc. or Albert Einstein College of Medicine, Inc. because they are clearly improper parties. The Affirmation of Ms. Weinstein is clear that the moving defendants are entities separate and distinct from co-defendant Montefiore Medical Center. Moreover, neither moving defendant provided, or is licensed to provide, health care services to patients, and in the case at bar, did not provide health care services to plaintiff s decedent Aaron Seabrooks at any time, including the relevant times set forth in plaintiff s amended complaint. (Id. at 7). Thus, the alleged facts do not fit within any cognizable legal theory, and the claims against Montefiore Medicine Academic Health System, Inc. and Albert Einstein College of Medicine, Inc should be dismissed pursuant to CPLR 3211(a)(7). II. IF THE COURT SHOULD DECLINE TO DISMISS THE AMENDED COMPLAINT AGAINST THESE MOVING DEFENDANTS, THEY SHOULD BE DROPPED FROM THIS ACTION ON THE GROUND OF MISJOINDER 13. For the reasons discussed supra, if this Court should decline to dismiss the amended complaint against the moving defendants, it is respectfully submitted that they should be dropped from this action as party defendants because they have been misjoined. Clearly, since co-defendant Montefiore Medical Center has already answered the amended complaint as to the identical allegations directed against it and the moving defendants; and at all relevant times, the moving defendants were (and remain) entities separate and distinct from Montefiore Medical Center, and never provided any health care services to plaintiff s decedent Aaron Seabrooks, they have been misjoined as party defendants. Therefore, they should be dropped from this action pursuant to CPLR WHEREFORE, defendants Montefiore Medicine Academic Health System, Inc. and Albert Einstein College of Medicine, Inc. respectfully request that the Court grant the within 4 4 of 5

5 motion in its entirety, together with such other and further relief as this Court deems just and proper. Dated: New York, New York June 6, 2016 /s/ Dominique Murray Dominique Murray 5 5 of 5